Scottish Court of Session Decisions

The Glasgow Police Act 1866 (29 and 30 Vict. cap. cclxxiii), enacts—Section 88—“They (the chief-constable or any superintendent, lieutenant, or constable acting under or appointed by him) may search for, take into custody, and convey to the police office any person who is either accused or reasonably suspected of having committed, either within the city or at any place wheresoever beyond the city, a penal offence or any police offence not herein specially directed to be made the subject of a complaint, in respect of which imprison—ment may be awarded without the alternative of a money penalty, or any police offence where the name and residence of such person are unknown to the constable and cannot be readily ascertained by him, or any person actually committing any riotous or disorderly conduct or act, or impeding any public thoroughfare.”

On 8th February 1911 Duncan Harvey, coppersmith and brassfounder, Glasgow, pursuer, brought an action of damages in the Sheriff Court at Glasgow against Alexander Sturgeon and Andrew Stirling, police constables, Glasgow, conjunctly and severally, defenders, in which he sued for

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£500 in respect of defenders conjunctly and severally having, on 25th October 1910, maliciously and without probable or any cause and without a warrant arrested the pursuer and taken him through the public streets to the Southern Police Station, Glasgow, and there falsely charged him with having failed to give a satisfactory account of the contents of a parcel which he was carrying, and which on examination proved to be an alarm clock which was being taken by him to the watchmaker's for repair, in consequence of which the pursuer was detained for some time in custody at said police office and was subjected to the indignity of being searched.

The pursuer averred, inter alia—“(Cond. 2) On an evening in or about the beginning of February 1910 the pursuer was proceeding about 5·30 p.m. from his business premises at Eglinton Lane to a metal refinery business which is carried on by his brothers at Salkeld Street. On his arrival there he was accosted by the defenders, who maliciously and without probable cause proceeded to search his clothing, and declared that he had something concealed under his overcoat. The pursuer remonstrated with the defenders as to their conduct and informed them of his identity. The defenders, for some reason unknown to the pursuer, had made up their minds to arrest him, and they were obviously disappointed when they discovered nothing of an incriminating nature upon him. After the defenders had got pursuer's name and address and had satisfied themselves that he had nothing to conceal they allowed him to go, but they intimated they would watch him in future. Said proceedings were wholly unjustifiable, and pursuer, who was a respectable and law-abiding citizen, was greatly annoyed at what had occurred and spoke pretty strongly to the defenders about their conduct. In consequence thereof pursuer believes and avers defenders conceived a feeling of ill-will towards him, which they determined to gratify by bringing another unfounded charge against him. (Cond. 3) On or about 25th October 1910 the pursuer left his premises before named about 5·35 p.m. and walked down Eglinton Street, his intention being to call at Salkeld Street to leave a message. At that time he was carrying a parcel containing an alarm clock which belonged to his mother, and which he was taking to a jeweller's for the purpose of being repaired. As he approached Salkeld Street he observed that the premises there were closed up. He thereupon retraced his steps along Bedford Street and proceeded along Apsley Place, when he was arrested by the defenders, who were in plain clothes. Defender Sturgeon crept up behind him and caught hold of the said parcel. The pursuer resented the defender Sturgeon's interference, with the result that pursuer was thrown heavily against some iron railings. Thereafter defender Sturgeon took him by the arm and the defenders marched him down through the public streets to the Southern Police Station, the pursuer walking between the defenders and held by Sturgeon. On arrival there the defenders falsely, maliciously, and without probable cause stated to the official in charge that they had arrested the pursuer on the ground that he had refused to disclose the contents of his parcel and also to give his name and address. The parcel was taken by the defenders from the pursuer and handed to the lieutenant in charge, who examined the same and found it to contain an alarm clock as aforesaid. The pursuer objected to being searched, but notwithstanding his remonstrance the defenders searched his person, and the contents of the various pockets were laid upon the counter of the police station. Prior to that, however, he informed the lieutenant who he was and stated that the defenders were all along aware of his indentity. Although he was well known to the defenders, they refused to concur in his indentity. (Cond. 4) When the defenders were in the act of searching the pursuer, Detective M'Bride, who was attached to the Southern Division, came out of the detectives' room, and on realising what was taking place he informed the lieutenant that there must be some mistake, as the pursuer was a most respectable man. Notwithstanding this information the pursuer was detained in custody until said detective was sent by the lieutenant in charge to the pursuer's mother's house to verify the information both as to his identity and as to the proprietorship of the alarm clock in question. On said statements being verified he was thereupon liberated. Cond. (5)… The arrest and charge against the pursuer was made maliciously and without probable or any cause, and was made for the purpose of injuring the pursuer in his reputation, feelings, and business. Since the incident in February 1910 the defenders have known perfectly well who the pursuer was. They have seen him frequently in the streets, and they knew he was a brother of Archibald Harvey, who is a partner in the Salkeld Street business.”

The defenders pleaded, inter alia—“(1) The action is irrelevant. (2) The defenders' whole actings towards pursuer being in the bona fide execution of their duty as police constables, without malice and with probable cause, are privileged.”

On 12th May 1911 the Sheriff-Substitute ( Boyd) sustained the first plea-in-law for the defenders and dismissed the action.

Note.—“… The ground of action is that defenders (first) maliciously and without probable cause arrested the pursuer without a warrant. On consideration of the terms of the Glasgow Police Act 1866, sec. 88, I do not think that a warrant was necessary. Police officers are thereby empowered to arrest any person, either accused or reasonably suspected of having committed a penal offence for which imprisonment may be given without a fine.

“The defenders say the pursuer approached this refinery in the dark with a

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parcel. It is well known that such premises are often visited by thieves for disposal of stolen metal and they are constantly watched by detectives. I do not think they were unreasonable in supposing he might be about to dispose of stolen property. I think it was a reasonable wish on their part to see the contents of the parcel, and I think also it would have been reasonable for the pursuer to disclose the contents at once, and had he done so it is likely the matter would have ended there. He did not take this course, however, and his refusal was calculated to increase the defenders' suspicion, and the defenders had to take him to the police station before they ascertained what the parcel contained.

The pursuer further says that the defenders falsely charged him with refusing to give a satisfactory account of the parcel, and I think it is plain from his own statement that he had refused to account for it, that he did resist the defenders' intention to examine the parcel, and that the defenders took him to the police station in consequence.

I think it is clear that the defenders were privileged, and the question is whether facts and circumstances are averred from which malice can be inferred (see Buchanan v. Glasgow Corporation, July 19, 1905, 7 Fraser 1001, 42 S.L.R. 801). From the facts stated by the pursuer I do not think I can infer malice. The defenders were mistaken in supposing the pursuer was carrying a suspicious article, but that does not imply malice. The mistake would have been apparent if the pursuer had displayed the contents when challenged, but as he refused, the only way of allaying suspicion and discovering the mistake, if there was one, was to take him to the station. I do not think that the facts stated by the pursuer lead inevitably to the conclusion that the defenders had conceived ill-will to the pursuer, and in order to gratify this had wilfully magnified the innocent incident of October into a false charge of resisting the police in the execution of their duty.”

The pursuer appealed to the Sheriff ( Gardner Millar), who on 12th February 1912recalled the interlocutor of the Sheriff-Substitute of 12th May 1911 and allowed a proof before answer.

Note.—“… In the case of Pringle v. Bremner & Stirling, May 6, 1867, 5 Macph. (H.L.) 55, 4 S.L.R. 18, the rule is laid down that the Court is not entitled to look at anything but the averments of the pursuer, together with any admissions he may have made in answer to averments by the defender. … The defenders' counsel laid great stress upon the possession of the parcel, at the time the defenders accosted the pursuer, as being a suspicious circumstance, and he referred to the averment by the defenders in their statement of facts that the defender Sturgeon asked the pursuer what he had there, pointing to the parcel, and that the pursuer persisted in his refusal to say what was in the parcel and would not give the defenders his name. This averment is met by a general denial by the pursuer, upon which the pursuer's counsel relied when asked if he would give a specific denial of this averment. According to the rule in the case above referred to I do not see how the Court can look at this averment.

The question therefore is upon these averments, has the pursuer stated a relevant case? The first question that was raised by the pursuer was as to his apprehension without a warrant. I think it is clear from the Glasgow Police Act 1866, sec. 88, and the authorities, that a police constable has the power in Glasgow to arrest without a warrant anyone whom he has reasonable ground for believing has committed a crime, but if he does proceed without a warrant then he must justify that by the circumstances. In the present case if the defenders had reasonable ground for believing that the pursuer was in possession of stolen property, then they were acting in the course of their duty in apprehending him. If that is proved, then the defenders are in a privileged position, and the question may arise thereafter whether the pursuer has stated circumstances inferring malice. He says the constables knew who he was, after the incident of February, and that he was a respectable citizen. They further knew that he was a brother of a partner of the business in Salkeld Street, and notwithstanding that they stopped him on the street, and without due inquiry as to the nature of his parcel took him down to the police office. These circumstances if proved may amount to malice, and accordingly I think the pursuer is entitled to inquiry, but in the whole circumstances I think it should be by a proof before answer.”

The pursuer required the cause to be remitted to the Second Division of the Court of Session for jury trial and proposed the following issue—“Whether, on or about 25th October 1910, the defenders wrongfully and illegally apprehended the pursuer in Apsley Place, Glasgow, and conveyed him to the Southern Police Office in Glasgow, to the loss, injury, and damage of the pursuer?”

The defenders objected to the form of the proposed issue, and argued—The pursuer's averments disclosed a case of privilege, and malice and want of probable cause should be put into the issue. The Glasgow Police Act 1866 (29 and 30 Vict., cap. cclxxiii), sec. 88, conferred special powers on police constables. Moreover, the actings of officials were always presumed to be bona fide until proved to be otherwise— Hill v. Campbell, December 9, 1905, 43 S.L.R. 226, per Lord Kinnear 229; Young v. Magistrates of Glasgow, May 16, 1891, 18 R. 825, 28 S.L.R. 645.

Counsel for the pursuer were not called on.